Lawmakers Not High on Marijuana
The failure of a New Jersey marijuana legalization measure may spell trouble for legalization bills in other statehouses.
By
Claire Hansen Staff WriterMay 24, 2019, at 6:00 a.m.
Legalization of recreational marijuana in New Jersey seemed all but inevitable earlier this year: The state's Democratic governor campaigned on the issue, polling showed
the public was on board, and a measure was winding through the Democratic-controlled state legislature led by lawmakers who backed the effort.
But in March, hours before a scheduled vote on the legalization bill, the measure was yanked for lack of support in the Senate. And despite tepid promises from top state lawmakers that they would continue to push for it, the state's Democratic Senate president
declared the legislation dead last week.
Instead, lawmakers will try to put the legalization question on the 2020 ballot where voters – not politicians – can make the call, he said.
What New Jersey pledged to do – legalize recreational marijuana use and set up a regulated retail market through legislation – is unprecedented. Of the 10 states that have legalized cannabis, nine of them have done so at the ballot box. The other, Vermont, did so through legislation, but the measure did not outline a legal, regulated retail scheme.
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Several other states with Democratic legislatures are attempting to pass recreational legalization measures and are running into roadblocks.
In neighboring New York, a push for legalization has slowed, plagued by some of the politicking and in-fighting that surrounded the New Jersey bill. A legalization effort in New Mexico
petered out before the legislative session ended in March and will be re-introduced next year. Illinois, which preemptively factored revenue from future marijuana sales into its budget, is trying to pass a sweeping legalization measure before the legislative session ends in two weeks, despite cries from critics that lawmakers are moving too fast. And a bill that would set up a retail market in Vermont still needs support from the state Senate and Republican governor.
It remains to be seen if the collapse of the New Jersey bill foreshadows the failure of similar measures in other blue states, but the decision to move the effort from the statehouse to the ballot box, coupled with the fact that no state has yet legalized marijuana through legislation, begs the question: Is it possible in the current political climate to push legalization through a state legislature – or is the only viable path to recreational use and regulated sales through voters?
"This is still not an easy issue to get through a legislature," says Roseanne Scotti, New Jersey state director for the Drug Policy Alliance, a pro-legalization group that has worked with states on drug reform. "Even when it seems that conditions are very favorable, it is still an issue that many elected officials are cautious about."
Among lawmakers who are generally supportive of marijuana legalization for adult recreational use, fierce debates continue over how exactly to do so, including disagreements over tax structure and provisions focused on social equality – debates informed by the issues faced by states that have already legalized through ballot referendums, like Colorado and California.
In New Jersey, lawmakers squabbled over how to tax marijuana sales, arguing about what rate would be high enough to generate revenue but low enough to ward off an illicit, underground market.
Also at issue was an expungement provision aimed at rectifying the harm caused by marijuana prohibition on communities of color. The New Jersey measure would have expunged the criminal records of people caught with up to 5 pounds of marijuana – an amount that many conservative and moderate lawmakers felt was too much. And, like other legislative priorities from education to taxes, the bill also fell victim to old fashioned political bad blood between the state's Senate president and its governor.
"We're talking about replacing a decades-old, ingrained prohibition model ... It's not surprising that lawmakers are taking their time."
In New York, politicians have, in one case, disagreed over a proposal to earmark a certain percentage of marijuana tax revenue for communities impacted by the war on drugs. Gov. Andrew Cuomo, a Democrat, proposed language that would give his office more control over those investments.
But while the infighting over provisions within legalization efforts has slowed legislation in New Jersey, New York and other states, some advocates say the spats and delays are typical of those surrounding any large piece of legislation – and, therefore, actually demonstrate the progress the country has made on the issue of cannabis legalization.
"We're talking about replacing a decades-old, ingrained prohibition model with a complex regulatory system and tax structure," says Mason Tvert, spokesperson for the Marijuana Policy Project, a pro-legalization organization that has played a role in key legalization efforts. "It's not surprising that lawmakers are taking their time on this. … Legislatures were designed to be deliberative bodies that don't make change on a whim but do so through this structured process. That's what we're seeing play out."
Tvert added that he believes it's no longer as much debate over whether marijuana should be legal but over what legalization looks like.
"They're airing out all sorts of issues that previously were not being widely discussed among lawmakers or in the media, in particular these issues like equity," Tvert said.
Despite debates around the specifics, Scotti says the measure in New Jersey simply didn't have enough votes in the Senate on the legalization question in general. Some lawmakers from minority communities are worried about how legalization would affect their constituencies, while other politicians are concerned about the impact on health and safety. Others are just morally opposed.
A ballot referendum, then, is usually more expedient than legislation as public opinion is often way ahead of where lawmakers are, advocates say – and that pattern helps to explain why all states with both legalization laws and a retail market have done so through the ballot. Several polls show that support for legalization tops 60 percent nationwide.
The gap between public opinion and legislative action also happened with medical marijuana, Scotti says. Despite high public support, it oftentimes took years for states to get medical marijuana programs on the books, and many did so through the ballot. Thirty-three states have medical marijuana programs, with California being the first to allow medical use in 1996.
Electoral politics contribute to that lag, Scotti says. Driven by political concerns, several communities in New Jersey and New York have said they would opt out of a marijuana retail program, as many districts in California have done.
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"I think most elected officials care most about what people in their districts think," Scotti says. "You would well have a lot of elected officials, a lot of folks, who are hearing voices in opposition in their particular districts. It's just more complicated because you have all those local pieces when you move something through the legislature."
But ballot referendums come with their own set of complications and can both allow more expansive legalization measures as well as necessitate more restrictive bills, depending on the state's referendum rules and its political landscape. Scotti says the number of states that allow for ballot measures on policies like cannabis legalization are dwindling.
Still, advocates say that, despite recent challenges to legalization efforts, there's progress being made. Though the legalization measure has been tossed by New Jersey, a conviction-expungement measure and a medical marijuana expansion are moving through the legislature.
"I don't want to downplay the frustration that people have," Tvert says. "But at the same time, it's pretty remarkable. … The fact that it took a state, like, three years of deliberation to develop this law is going to seem like it was a relatively quick thing."